Citation Nr: 20021677 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-38 255 DATE: March 26, 2020 ORDER Entitlement to service connection for a dental condition is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a condition of the right fingers is remanded. Entitlement to service connection for a condition of the left fingers is remanded. Entitlement to service connection for a left shoulder condition, claimed as secondary to a service-connected right shoulder condition is remanded. FINDINGS OF FACT 1. The evidence does not establish that the Veteran had a dental condition in service, nor does it establish the Veteran had removal of teeth resulting from damage to the jaw. 2. The Veteran does not have a diagnosis of bilateral hearing loss that meets Department of Veterans Affairs (VA) disability criteria. 3. During the appeal period, the Veteran’s PTSD symptoms are not productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a dental disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.385. 3. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to May 2007 and June 2008 to June 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision issued by the VA Regional Office (RO). The Veteran submitted a notice of disagreement in August 2019 and the RO issued a statement of the case in December 2019. The Veteran submitted his substantive appeal in December 2019. The Board notes that a September 2019 rating decision increased the disability rating for the Veteran’s PTSD to 70 percent, effective May 3, 2017. The Board also notes that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) will be adjudicated under the Appeals Modernization Act process. The matter will not be addressed in this decision. The Veteran has not provided specific contentions regarding his claims for loss of teeth, hearing loss, and disorders of the right and left fingers. The Veteran contends that his left shoulder condition is secondary to his service-connected right shoulder condition due to overcompensation. The Veteran has also explained that he had a worsening in his PTSD condition and claimed that he should receive a higher rating for his PTSD. The Veteran maintains that he was totally disabled due to his PTSD during the period of August 2018 to March 2019. As noted, the Board will consider whether the Veteran’s PTSD warrants an increased rating under the schedular criteria. The Board recognizes that recent VA treatment records have been added to the claims file since the last statement of the case. However, the Board finds that no additional action in this regard is needed. The records are either not relevant or will not change the outcome of the case. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ -- the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for a dental condition Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include various problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, loss of the hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease. 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling conditions, and may be considered service connected solely for establishing eligibility for VA outpatient dental treatment. 38 C.F.R. § 3.381(a) (2018). The Veteran’s service treatment records do not show he had any significant dental conditions during service. He was repeatedly noted to be class 2 dental, with soft tissue within normal limits, and carries risk low. There is no evidence that the Veteran suffered loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease. The post service medical evidence is also silent in this regard. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to service connection for a dental disorder, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is related to his military service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Additionally, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. However, “when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. In this case, the current evidence of record fails to show that the Veteran has hearing loss as recognized by VA law and regulations. The Board acknowledges that the Veteran’s DD 214 shows that his military occupational specialty was an infantryman, which is associated with exposure to loud noise. Nonetheless, there are no audiometric findings in the service treatment records that meet the requirements for hearing loss as defined by VA. VA examination dated in March 2016 showed normal findings. The Veteran’s puretone threshold levels ranged from 5 to 10 decibels and speech discrimination scores were 100 on the right and 94 on the left. The examiner found the Veteran’s hearing to be within normal limits bilaterally. The Veteran was afforded a VA hearing examination in July 2018. That evaluation also showed essentially normal hearing. The highest decibel level was 25dB at 4000Hz in the left ear, with all other thresholds at or below 20 in both ears. Speech recognition was recorded as 94 percent in the right ear and 96 percent in the left ear. A VA treatment report dated in January 2020 shows that the Veteran complained of worsening hearing, but found his examination to be stable, with good speech recognition in both ears, and no hearing loss was indicated. The objective medical evidence of record does not establish a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a current hearing loss disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is competent to state that he has difficulty hearing, as a lay person, he is not competent to diagnose a hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In the absence of a current hearing loss disability, additional discussion concerning nexus or presumptive service connection is not required, and service connection for bilateral hearing loss is denied. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert, 1 Vet. App. 49, 53-54 (1990). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to an increased rating in excess of 70 percent for PTSD The Veteran’s PTSD is currently assigned a 70 percent disability rating under 38 C.F.R. § 4.130, DC 9411. PTSD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. By April 2016 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating, effective January 26, 2016. In May 2017, the Veteran requested reconsideration of his percentage rating for PTSD. In response, the RO sought clarification of the Veteran’s written correspondence and advised him of the appropriate form to submit, including the appropriate form for notice of disagreement. The Veteran submitted a supplemental claim for compensation. For the rating period on appeal, a review of the record fails to show that the criteria for the assignment of a 100 percent rating for PTSD have been met. The Veteran’s PTSD is not productive of gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting himself or others, any inability to maintain minimal personal hygiene, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. In fact, on VA PTSD examination in July 2018, the examiner observed that the Veteran was alert, cooperative and polite. The Veteran was fully oriented, and his speech was within normal limits, and his thinking was goal-directed. There was with no evidence of hallucinations or delusions. The Veteran’s judgment and insight was intact. There was no evidence of suicidal or homicidal ideation with protective factors including work ethic and love for his daughter. The Veteran was dressed neatly and appropriately for the setting. Additionally, there was also no indication that the Veteran suffered from memory loss. The examiner found that the Veteran was capable of managing his own financial affairs. The medical evidence of record received subsequent to the July 2018 VA PTSD examination confirms the presence of the same disability picture. The reports consistently show that the Veteran was alert, oriented, cooperative, with no unusual speech patterns or behavior observed. The Veteran was consistently coherent, without memory loss, hallucinations, delusions, or suicidal or homicidal ideation. Accordingly, the probative and persuasive evidence shows that the Veteran’s PTSD symptoms are productive of no more than occupational and social impairment with deficiencies in most areas due to depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Evidence showing symptoms with the severity, frequency, and duration required for the assignment of a 100 percent rating is not present. The Board finds that the Veteran’s PTSD disorder is not productive of total occupational and social impairment at any time during the appeal period. Accordingly, the assignment of a rating higher than 70 percent is not warranted. The evidence is not in equipoise and there is no doubt to be resolved. The claim is denied. See 38 C.F.R. § 4.130, DC 9411. REASONS FOR REMAND 4. Entitlement to service connection for a condition of the right fingers 5. Entitlement to service connection for a condition of the left fingers 6. Entitlement to service connection for a left shoulder condition, claimed as secondary to the service-connected right shoulder condition The record establishes that the Veteran has complained of bilateral pain in his index and ring fingers, and that he has reported that he has a hard time opening his fingers in the morning. The record also demonstrates that the Veteran has complained of left shoulder pain, and that he has been diagnosed with left shoulder bursitis. The RO denied the Veteran’s claims for service-connection because the record does not reflect diagnoses or treatment of his claimed disorders. However, the record does demonstrate that the Veteran has complained of pain in the bilateral fingers and in the left shoulder. Additionally, such observations of pain in his fingers and shoulders are the types of observations the Veteran is competent to make. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Again, a diagnosis of left shoulder bursitis is present. Accordingly, VA must obtain an examination. A VA examination is needed in service connection claims when there is an indication that the current disability may be associated with the Veteran’s service and there is a lack of sufficient evidence to decide the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not yet been afforded a VA examination regarding his disorders of the left and right fingers and his left shoulder condition. It is also noted that the Veteran served in the Southwest Asia theater of operations. See VA Form DD 214. The provisions of 38 U.S.C. § 1117; 38 C.F.R. § 3.317 should be considered. Further, with regard to the Veteran’s left shoulder condition, service-connection for a right shoulder disability is in effect and the Veteran has stated that he overcompensates with his left arm because of the pain he has in his right shoulder. A VA examination is needed to identify all left shoulder disorders and to address the etiology of any identified left shoulder condition, to include whether any left shoulder disorder was caused or aggravated by the service-connected right shoulder disability. The matters are REMANDED for the following action: 1. Associate with the record any treatment records, VA or non-VA, not previously associated with the file. 2. After completing the above action, schedule the Veteran for a VA examination to identify any conditions of the right and left fingers and to obtain an opinion regarding the nature and etiology of the Veteran’s right and left fingers conditions. The examiner should respond to the following: a) Identify all disorders of the right and left fingers. The examiner should also note whether the Veteran’s complaints of pain of the fingers result in functional impairment of earning capacity. b) For each diagnosed disability and condition that causes functional impairment of earning capacity, is it at least as likely as not (a 50 percent or greater probability) that it had its onset during or is otherwise related to the Veteran’s active military service? c) The examiner should also comment on whether any of the Veteran’s signs or symptoms are consistent with (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; (3) a diagnosable chronic multi-symptom illness with a partially explained etiology; or (4) a disease with a clear and specific diagnosis and etiology. The examiner is asked to comment on whether it is at least as likely as not that any signs or symptoms or diagnosed disease is related to environmental exposures experienced by the Veteran during active duty, to include his service in Southwest Asia. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Schedule the Veteran for a VA examination to identify all disorders of the left shoulder and to obtain an opinion regarding the nature and etiology of any identified left shoulder condition. The examiner should respond to the following: a) Identify all left shoulder disorders present. b) Is it at least as likely as not (50 percent probability or greater) that any left shoulder disorder diagnosed, to include left shoulder bursitis, is related to any in-service event or exposure? c) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed left shoulder bursitis was caused by, or aggravated by, his service-connected right shoulder disability? A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.